Does the North Carolina General Assembly have the constitutional authority to enact Senate Bill 883, which would create a new Professional Teaching Standards Board that operates independently of the State Board of Education and would, by plan, take over from the State Board the responsibility of setting standards for and issuing, renewing, and revoking teacher licenses?

Plain-English summary

Representative Anne Barnes asked the AG to assess Senate Bill 883, a measure that would create a new "North Carolina Professional Teaching Standards Board" empowered to exercise its functions "independently of the State Board of Education." Under SB 883, the new Teaching Board's central duty would be to develop a plan, ultimately ratified by the General Assembly, for the Teaching Board to assume responsibility from the State Board for setting standards for teacher licensing and for issuing, renewing, and revoking teacher licenses. The end result would be that the Teaching Board, not the State Board of Education, would license teachers.

Chief Deputy AG Andrew A. Vanore, Jr., and Senior Deputy AG Edwin M. Speas, Jr., concluded that SB 883 as drafted may be unconstitutional because it removes the State Board of Education entirely from teacher licensing, an area the NC Constitution gives the State Board.

The constitutional anchor is Article IX, § 5, which charges the State Board with the duty "to supervise and administer the free public school system." In Guthrie v. Taylor, 279 N.C. 703 (1971), the NC Supreme Court read that broad duty to include the specific powers that had been conferred on the State Board by the former Constitution, including the power to "regulate the grade, salary and qualifications of teachers." Reading Guthrie forward, the AG concluded that the people, in adopting the current Constitution, intended the State Board to set the standards for and issue, renew, and revoke teacher licenses. Those are the very powers SB 883 would ultimately transfer wholesale to the Teaching Board.

The General Assembly is not without authority over teacher licensing. Art. IX, § 5 makes all the powers conferred on the State Board "subject to laws enacted by the General Assembly." Guthrie read an essentially identical phrase in the former Constitution to make the State Board's powers "subject to limitation and revision" by the General Assembly. That gives the legislature significant room. The AG identified several constitutional ways the General Assembly could shape teacher licensing without unconstitutionally stripping the State Board:

• Enact statutes that directly set the licensing standards the State Board must apply. The opinion notes the 1973 act forbidding the State Board from issuing certificates to anyone who had not achieved a specified score on the National Teachers Examination (1973 Sess. Laws ch. 236) as a working example.
• Create a Teaching Board with authority to make recommendations to the State Board about changes in licensing standards.
• Create a Teaching Board with authority to adopt licensing standards and issue, renew, and revoke licenses, subject to some form of final approval by the State Board.

The line the AG drew was between limitation/revision of the State Board's exercise of its constitutional powers (permitted) and outright denial of those powers by transferring them to another agency to exercise independently of the State Board (likely unconstitutional). The constitutional structure can accommodate a robust expert teaching-standards body; it cannot, in the AG's reading, accommodate one that operates outside the State Board's framework.

Currency note

This opinion was issued in 1994. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The opinion evaluates SB 883 as drafted in 1994. A current proposal requires review under current constitutional and statutory law; this opinion does not assess later changes.

Common questions

Q: What does Article IX, § 5 actually say?
A: It assigns the State Board of Education the duty "to supervise and administer the free public school system," and makes the powers conferred on the State Board "subject to laws enacted by the General Assembly." That short formulation does two things at once: it gives the State Board a constitutional role in education that the legislature cannot eliminate, and it preserves the legislature's authority to shape the manner in which the State Board exercises that role.

Q: What did Guthrie v. Taylor add to that?
A: Guthrie (1971) read the State Board's broad constitutional duty to include the more specific powers the former Constitution had assigned to the Board, including the power to "regulate the grade, salary and qualifications of teachers." So the State Board's constitutional turf includes teacher licensing as a matter of constitutional structure, not just historical practice.

Q: Why is "independence" the constitutional problem?
A: Because if SB 883 had said "Teaching Board recommends standards; State Board adopts them" or "Teaching Board exercises licensing authority subject to State Board final approval," there would still be a constitutional role for the State Board. SB 883 instead said the Teaching Board "would exercise all its powers independently of the State Board of Education." That word "independently" cuts the State Board entirely out of the licensing decision. The AG reads the Constitution to make that excision the bridge too far.

Q: Could the General Assembly just legislate the licensing standards directly?
A: Yes. The AG says the General Assembly could enact licensing standards for the State Board to apply, citing a 1973 law that barred certificates for applicants below a specified National Teachers Examination score. The opinion permits legislative limits or revisions "so long as some authority remains with the State Board." It does not define the minimum authority the Board must retain.

Q: What about a Teaching Board that advises the State Board?
A: Fine. The AG specifically identifies a Teaching Board with recommendation authority as a constitutional structure. A Teaching Board with even more authority (adopting standards, issuing licenses) is also fine if the State Board retains some form of final approval. The constitutional problem is the absence of the State Board, not the presence of a specialized body.

Q: Why does the AG hedge with "may be unconstitutional" instead of "is"?
A: The opinion says a complete transfer of teacher licensing to an independent body "may be unconstitutional" and "likely" exceeds the legislature's power to limit or revise the State Board's authority. It also lists arrangements that would preserve some State Board authority.

Background and statutory framework

The opinion says the current Constitution gives the State Board the duty "to supervise and administer the free public school system." It relies on Guthrie v. Taylor for the conclusion that this duty includes teacher qualifications. The Constitution also makes the Board's powers "subject to laws enacted by the General Assembly."

SB 883 proposed that the Teaching Board exercise its powers independently of the State Board. The AG concluded that a complete transfer of teacher licensing would deny the State Board a power conferred by the Constitution.

The AG identified three possible legislative arrangements: establish standards for the State Board to apply; let a Teaching Board recommend standards to the State Board; or permit a Teaching Board to set standards and issue licenses subject to some form of final State Board approval.

Citations

• N.C. Const. Art. IX, § 5 (State Board of Education; duty to supervise and administer the free public school system; subject to laws enacted by the General Assembly)
• Senate Bill 883 (proposed Professional Teaching Standards Board)
• Guthrie v. Taylor, 279 N.C. 703 (1971) (Article IX, § 5 includes specific powers of former Constitution; "subject to" phrase permits limitation and revision)
• 1973 Sess. Laws, ch. 236 (statute setting minimum National Teachers Examination score for State Board issuance of certificates; cited as example of permissible legislative limitation)

Source

• Landing page: https://ncdoj.gov/opinions/north-carolina-professional-teaching-standards-board/

Original opinion text

June 23, 1994

Representative Anne Barnes
Legislative Office Building
Room 419C
Raleigh, North Carolina 27602

Re: Advisory Opinion; N.C. Const., Art. IX, §5; Senate Bill 883

Dear Representative Barnes:

Senate Bill 883 creates the North Carolina Professional Teaching Standards Board (hereinafter "Teaching Board") which would exercise all its powers "independently of the State Board of Education." The essential duty of the Teaching Board is to create a plan for it to assume responsibility from the State Board of Education (hereinafter "State Board") for setting standards for licensing teachers and for issuing, renewing and revoking teacher licenses. Apparently, it is intended that this plan would then be ratified by the General Assembly and the Teaching Board would in fact assume independent power for licensing teachers.

By letter dated June 20, 1994 you ask whether the General Assembly has the constitutional authority to confer on the Teaching Board, separate and independent from the State Board of Education, the power for setting standards for the licensing of teachers and for issuing, renewing and revoking those licenses.

For reasons which follow, it is our opinion that S.B. 883, if enacted as presently drafted, may be unconstitutional because it removes completely the State Board from any involvement in one of the most critical areas of education – the licensing of teachers.

The Constitution confers on the State Board the duty "to supervise and administer the free public school system." N.C. Const. Art. IX, § 5. In Guthrie v. Taylor, 279 N.C. 703, 710 (1971), the Supreme Court held that the State Board's broad constitutional duty to "supervise and administer the free public school system" encompasses the more specific powers conferred on the State Board by our former Constitution. One of those specific powers was to "regulate the grade, salary and qualifications of teachers." Thus, it seems clear that in approving our present Constitution the people intended to give to the State Board the duty to establish standards for the licensing of teachers and to issue, renew and revoke those licenses. These are the precise powers Senate Bill 883, if enacted, would ultimately transfer to the Teaching Board to exercise independently of the State Board.

Article IX, Section 5 of the Constitution makes all the powers conferred on the State Board "subject to laws enacted by the General Assembly." In Guthrie v. Taylor, the Supreme Court held that an essentially identical phrase in our former Constitution ("subject to such laws as may be enacted from time to time by the General Assembly") "was designed to make, and did make, the powers so conferred upon the State Board subject to limitation and revision by acts of the General Assembly." 279 N.C. at 710 (emphasis added). Whether Senate Bill 883 is within the power of the General Assembly to enact thus depends on whether the transfer of the State Board's constitutional duty to supervise and administer the licensing of teachers to another body to exercise independently of the State Board is only a limitation or revision of State Board's constitutional duty. We think that a legislative act transferring the State Board's constitutional power regarding teacher licensing to another agency to be exercised by that agency independently of the State Board would amount to more than a limitation or revision of the constitutional powers of the State Board. It would amount to the denial to the State Board of a power conferred on the State Board by the people. While the General Assembly has the power to limit and revise the manner in which the State Board exercises its constitutional powers, the General Assembly in our opinion likely does not have the power to take away completely a constitutionally specified power of the State Board and give it to another agency.

There are numerous examples of ways in which the General Assembly can exercise its power to limit or revise the constitutional powers of the State Board regarding certification so long as some authority remains with the State Board. For example, the General Assembly could enact legislation directly establishing the licensing standards to be applied by the State Board. In fact, in 1973 the General Assembly enacted legislation forbidding the State Board from issuing certificates to any persons who had not achieved a specified score on the National Teachers Examination. See 1973 Sess. Laws c. 236. The General Assembly could create the Teaching Board and empower it to make recommendations to the State Board for changes in licensing standards. Finally, the General Assembly could also empower a Teaching Board to adopt licensing standards as well as issue, renew and revoke those licenses, subject to some form of final approval of the State Board.

Andrew A. Vanore, Jr.
Chief Deputy Attorney General

Edwin M. Speas, Jr.
Senior Deputy Attorney General